Résumé
Ce chapitre vise à placer dans son contexte le rôle limité du Droit coutumier dans le Droit fédéral actuel des USA en évaluant le statut de le common law fédéral dans la jurisprudence des tribunaux fédéraux. Comme nous l’étudions ici, du common law fédéral d’origine judiciaire- qui en composant une règle de décision peut parfois faire référence au Droit coutumier- est contrariée, si ce n’est pas défavorisée. En retour, cela offre peu de possibilité pour le Droit fédéral- ou tout au moins pour le common law fédéral pour regarder et emprunter des principes du Droit coutumier. Après avoir tracé l’approche évolutive de le common law fédéral aux USA et avoir discuté les « enclaves » contemporaines dans lesquelles le Droit coutumier continue d’exercer une influence sur le common law fédéral, ce chapitre conclut en observant que le résultat de cette évolution est un corps de Droit fédéral moderne qui est plus insulaire par sa nature qu’à sa Fondation et qui dès lors, contrairement à ce qui prévalait à ses débuts est moins susceptible d’utiliser le Droit coutumier. Déterminer si cela est une bonne ou une mauvaise chose, comme nous l’étudions en conclusion, est un sujet qui mérite un débat sérieux.
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Notes
- 1.
At the outset, it must be stated that the domain of federal common law even as a definitional matter is widely disputed. One person’s view of judicial statutory interpretation may constitute another’s judicial common lawmaking. I will use the phrase here in the vein of the definition employed in the Hart & Wechsler Federal Courts book to encompass, loosely speaking, “federal rules of decision whose content cannot be traced directly by traditional methods of interpretation to federal statutory or constitutional commands.” See Richard H. Fallon, Jr., John F. Manning, et al. (2015), p. 635 [hereinafter “Hart & Wechsler”]. For a list of other scholarly definitions, see id. at n.1. As the discussion that follows reveals, this chapter intends to avoid wading into the disputes over the distinction between statutory interpretation and federal common lawmaking that informs much of the core debate between purposivists and textualists. For an overview of that debate, see id. at 653–656; see also John F. Manning (2006), pp. 70–111 Instead, my focus here is predominantly on those “enclaves” of federal common law that today have arguable connection to the Constitution and its presuppositions.
- 2.
Here, it bears highlighting that the focus of the chapter is on federal common law as announced and enforced by federal courts (and state courts under the Supremacy Clause ). This chapter does not speak to state law, whether common law, statutory law, or constitutional law. For a host of institutional reasons, judicial common law decisions at the state level are far more common. It follows that there exists the potential for customary law to wield greater influence at the state level.
- 3.
Top on this list is the Alien Tort Statute, 28 U.S.C. § 1350, which confers jurisdiction on the federal courts over a “civil action by an alien for a tort only, committed in violation of the law of nations,” but provides little else in the way of guidance as to what actions may be brought and against whom. For a summary of the current debates, see Hart & Wechsler, supra note 1, at 712–722.
- 4.
This in part explains why the domain of common lawmaking for state judges is much broader than that enjoyed by federal judges. See supra note 2.
- 5.
Judiciary Act of 1789, ch. 20, §§ 9, 11, 1 Stat. 73, 76–79. The principle author of the first Judiciary Act was Oliver Ellsworth, who later served as the third Chief Justice of the Supreme Court of the United States.
- 6.
Crimes Act of 1790, ch. 9, 1 Stat. 112.
- 7.
Bradford R. Clark (2001), p. 1321, p. 1404.
- 8.
See Anthony J. Bellia, Jr. & Bradford R. Clark (2009), pp. 1–93.
- 9.
United States v. Smith, 27 F. Cas. 1147, 1147 (C.C.D. Mass. 1792) (No. 16,323); see United States v. McGill, 26 F. Cas. 1088, 1090 (C.C.D. Pa. 1806) (No. 15,676) (concluding that federal courts have jurisdiction over common law crimes); United States v. Anonymous, 1 F. Cas. 1032, 1034 (C.C.D. Pa. 1804) (No. 475) (instructing jury that indictments may be sustained by common law or statute); Williams’ Case, 29 F. Cas. 1330 (C.C.D. Conn. 1799) (No. 17,708) (upholding conviction of expatriate under common law rule); United States v. Ravara, 27 F. Cas. 714, 714 (C.C.D. Pa. 1794) (No. 16,122a) (upholding common law indictment against a foreign consul despite the defendant’s argument that “the matter charged in the indictment was not a crime by the common law, nor is it made such by any positive law of the United States”); Henfield’s Case, 11 F. Cas. 1099, 1100 (C.C.D. Pa. 1793) (No. 6360) (instructing the jury on the common law crime of breach of neutrality).
- 10.
See 1 William W. Story ed. (1851), p. 299 (discussing federal common law crimes and noting that “excepting Judge Chase, every Judge that ever sat on the Supreme Court Bench, from the adoption of the Constitution until 1804 . . . held a like opinion”).
- 11.
2 U.S. (2 Dall.) 384, 28 F. Cas. 774 (C.C.D. Pa. 1798) (No. 16,766).
- 12.
See id. at 393–394 (“For, the Constitution of the Union, is the source of all the jurisdiction of the national government; so that the departments of the government can never assume any power, that is not expressly granted by that instrument, nor exercise a power in any other manner than is there prescribed.”).
- 13.
11 U.S. (7 Cranch) 32 (1812).
- 14.
14 U.S. (1 Wheat.) 415 (1816).
- 15.
11 U.S. (7 Cranch) at 34.
- 16.
Justice Story had considered the issue of federal common law crimes “as one open to be discussed, notwithstanding the decision in U.S. v. Hudson.” United States v. Coolidge, 25 F. Cas. 619, 621 (C.C.D. Mass. 1813) (No. 14,857), rev’d, 14 U.S. (1 Wheat.) 415.
- 17.
See Story, supra note 10, at 299.
- 18.
See In re Debs, 158 U.S. 564 (1895). In the Debs case, the Supreme Court recognized judicial authority to provide injunctive relief where general federal power exists in the background, notwithstanding the absence of an express legislative grant of authority:
Is the army the only instrument by which rights of the public can be enforced, and the peace of the nation preserved? Grant that any public nuisance may be forcibly abated, either at the instance of the authorities, or by any individual suffering private damage therefrom. The existence of this right of forcible abatement is not inconsistent with, nor does it destroy, the right of appeal, in an orderly way, to the courts for a judicial determination, and an exercise of their powers, by writ of injunction and otherwise, to accomplish the same result.
Id. at 582.
- 19.
In addition to the deciding of the Erie case, discussed below, 1938 witnessed the adoption of the Federal Rules of Civil Procedure, which continue to govern civil litigation in the federal courts to this day, albeit heavily amended from their original form.
- 20.
41 U.S. (16 Pet.) 1 (1842).
- 21.
U.S. Const. art. III, § 1 (authorizing the creation of inferior federal courts); id. § 2 (authorizing the exercise of diversity jurisdiction).
- 22.
In 1842, New York followed the old American rule, which entitled Tyson to raise the defense of fraud, which, if successful, would have invalidated the instrument.
- 23.
28 U.S.C. § 1652.
- 24.
See generally Anthony J. Bellia, Jr. & Bradford R. Clark (2017).
- 25.
In Story’s view, only “statutes … and the construction thereof adopted by the local tribunals” constitute “laws” within the scope of the Rules of Decision Act. Swift, 41 U.S. (16 Pet.) at 18. This being said, Justice Story also said that “long established local customs having the force of laws” would fall within the Rules of Decision Act. Id. at 12.
- 26.
Specifically, Justice Story differentiated between matters strictly local (for example, property) and those that were not (for example, contractual and commercial matters). Eventually, however, the Swift regime came to govern in many areas of the law that Justice Story would have categorized as local.
- 27.
See U.S. Const. art. VI, cl. 2. The Supremacy Clause is discussed below.
- 28.
304 U.S. 64, 78 (1938).
- 29.
Here, Justice Brandeis relied upon the work of a legal scholar who had uncovered an earlier version of the Rules of Decision Act defining the “[t]he laws of the several states” as “the statute law of the several states . . . and their unwritten or common law now in use.” Id. at 72–73; see Charles Warren (1923), p. 49, p. 86 (quoting original wording of the statute).
- 30.
See Erie, 304 U.S. at 74–77.
- 31.
Id. at 77. Some have questioned whether Brandeis actually meant this statement, but there is good reason to believe that he did. After all, Justice Brandeis subscribed to a strong view of statutory stare decisis—that is, the view that once the courts interpret a statute, that interpretation should control unless and until the legislature amends the statute. See Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting) (“Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right.”). Justice Brandeis also advocated in favor of construing statutes to avoid constitutional difficulties. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936) (Brandeis, J., concurring). Further, as Judge Friendly once said, just because a critic would have decided a case differently does not make the stated basis for the decision dictum. See Henry J. Friendly (1964), pp. 383, 385–386 (“A court’s stated and, on its view, necessary basis for deciding does not become dictum because a critic would have decided on another basis.”).
- 32.
Erie, 304 U.S. at 77–78.
- 33.
Id. at 79–80.
- 34.
Id. at 78. Here again it bears highlighting that the content of state law may well derive from customary principles, depending on the issue and context in which it arises.
- 35.
See, e.g., Murdock v. City of Memphis, 87 U.S. 590 (1875) (holding that in exercising its appellate jurisdiction over decisions of state courts, the Supreme Court should decline to disturb state court decision on issues of state law).
- 36.
See Suzanna Sherry (2011), pp. 129–154.
- 37.
304 U.S. 92 (1938). Hinderlider actually involved a private party suing a state; the core issue, however, pertained to the force and application of an interstate water compact, which the Court held posed questions of law that were federal in nature.
- 38.
See U.S. Const. art. III, § 2. The Judiciary Article of the Constitution provides in its first section that “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish” and that judges “shall hold their Offices during good Behaviour.” Id. § 1. In promoting the Constitution, Alexander Hamilton championed the importance of independent courts in The Federalist Papers by arguing that “‘there is no liberty, if the power of judging be not separated from the legislative and executive powers.’” Clinton Rossiter ed. (2003), p. 465 (Federalist No. 78) (Alexander Hamilton) (quoting Montesquieu’s Spirit of Laws) (positing that “complete independence of the courts of justice is peculiarly essential” and that limits on legislative authority “can be preserved in practice no other way than through the medium of courts of justice. . . .”).
- 39.
Articles of Confederation of 1781, art. IX. For additional details on the Articles as well as a survey of the literature on them, consult Jack Rakove (1982), p. 45.
- 40.
In such cases, the Court has held that “the principles of right and equity shall be applied having regard to the ‘equal level or plane on which all the States stand . . . under our constitutional system.’” Connecticut v. Massachusetts, 282 U.S. 660, 670 (1931). As this quotation suggests, the equal footing doctrine has wielded considerable sway over this area of jurisprudence.
- 41.
See generally Friendly, supra note 31.
- 42.
Id. at 405.
- 43.
Id. at 422.
- 44.
John Hart Ely (1974), pp. 693–740.
- 45.
U.S. Const. art. VI, cl. 2.
- 46.
Thus, any such legislation could be sustained on the basis that it regulated interstate commerce. Indeed, Congress has enacted extensive legislation governing the employer obligations of interstate railroads. See, e.g., Federal Employers’ Liability Act, Pub. L. No. 60–100, 35 Stat. 65 (1908), codified as amended at 45 U.S.C. §§ 51 et seq.
- 47.
See, e.g., Kansas v. Colorado, 206 U.S. 46, 97 (1907) (referencing international law as one source to which the Court will turn in such cases); see also Hart & Wechsler, supra note 1, at 696–698 (discussing the law of interstate disputes and debates over whether the defense of judicial lawmaking in this area stems from constitutional design or some other basis).
- 48.
For an example of judicial lawmaking in this realm, see, e.g., Banco Nacional De Cuba v. Sabbatino, 376 U.S. 398 (1964). To be sure, the contours of this proposition and its framing are the subject of considerable debate, and case law is anything but clear on whether this area of jurisprudence is grounded in the inherent assumptions of the constitutional structure and the role of the federal government as a single voice in foreign relations for this country, and/or an implied assumption of the Constitution that state law is preempted in the field, at least in part. Some notable scholars, moreover, have questioned even the premise that foreign relations is inherently a federal matter. See Jack L. Goldsmith (1997), pp. 1617–1716.
- 49.
See Bellia & Clark, supra note 24, at 41–112.
- 50.
U.S. Const. art. III, § 2 (granting jurisdiction over admiralty cases); see also Chelentis v. Luckenbach S. S. Co., 247 U.S. 372, 382 (1918).
- 51.
Hart & Wechsler, supra note 1, at 686.
- 52.
For details, see William A. Fletcher (1984), p. 1513. The description above in text provides a simplistic account of the field. Note that today admiralty law sweeps far beyond its original core described above so as to govern navigable waterways generally. Here, again, one sees how questions of scope are enormously important to modern debates over federal common law. For criticism of the breadth of the modern reach of admiralty law and its preemptive effect, see, e.g., Bradford R. Clark (1996), pp. 1245–1376; Ernest A. Young (1999), pp. 273–398.
- 53.
See, e.g., Clearfield Trust Co. v. United States, 318 U.S. 363, 367 (1943) (referencing the law of merchant in fashioning the rule of decision); D’Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 456 (1942) (holding that questions of liability in a suit brought by a federal corporation “involve[] a decision of a federal not a state question”).
- 54.
To call this proposition controversial does not even begin to do it justice. The Supreme Court decisions in recent decades on point were all decided by a vote of 5-4 and have proved fodder for enough critical academic commentary to fell a forest. For a sampling of these debates, see Hart & Wechsler, supra note 1, at 935–981.
- 55.
Cf. Home Telephone & Telegraph Co. v. City of Los Angeles, 227 U.S. 278, 283–286 (1913) (holding that what constitutes state action for purposes of the Fourteenth Amendment presents a question of federal, and not state, law). The case law on constitutional remedies is discussed further below in Part 5.
- 56.
Henry P. Monaghan (1975), pp. 1–45.
- 57.
487 U.S. 500 (1988).
- 58.
Id. at 512 (emphasis added).
- 59.
See Bradford R. Clark (2017), pp. 2129–2142. Of course, also looming large here is potential government immunity from suit.
- 60.
Here it bears also noting that it does not automatically follow that any federal rule chosen should necessarily be different than the state rule that would otherwise govern a dispute. Indeed, in many cases in which the government is a party, adopting the relevant state rule as the federal rule might be preferable insofar as doing so will not disrupt settled expectations and the larger legal context in which the federal rule operates. See, e.g., Clearfield Trust Co. v. United States, 318 U.S. 363, 367 (1943) (defining the rights and obligations of the United States in a federal paycheck dispute with respect to matters of forgery); see also Friendly, supra note 31, at 409–411 (making this same point and referencing Clearfield as potentially skipping over it too quickly).
- 61.
An example from the admiralty world highlights the point. See Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 160 (1920) (concluding that a congressional statute improperly delegated authority to states in maritime realm).
- 62.
See, e.g., Moragne v. States Marine Lines, Inc., 398 U.S. 375, 390–391 (1970) (“The legislative establishment of policy carries significance beyond the particular scope of each of the statutes involved. The policy thus established has become itself a part of our law, to be given its appropriate weight not only in matters of statutory construction but also in those of decisional law.”).
- 63.
See, e.g., Milwaukee v. Illinois, 451 U.S. 304, 424 (1981) (“[I]t is for Congress, not federal courts, to articulate the appropriate standards to be applied as a matter of federal law.”).
- 64.
American Elec. Power Co. v. Connecticut, 564 U.S. 410, 424 (2011) (quoting Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625 (1978)).
- 65.
Erie, 304 U.S. at 78.
- 66.
For an overview of the debates and literature, see Hart &Wechsler, supra note 1, at 645–653.
- 67.
By this statement and as discussed at supra note 1, this chapter means to exclude reference to areas considered by some to constitute federal common law but by others to constitute statutory interpretation. Thus, for example, this discussion does not speak to the debates over whether it is permissible for the courts to imply private causes of action and/or remedies out of statutory schemes, see, e.g., Cannon v. University of Chicago, 441 U.S. 677 (1979) (implying a private cause of action under Title IX); id. at 743 (Powell, J., dissenting) (arguing that doing so “allows the Judicial Branch to assume a policymaking authority vested by the Constitution in the Legislative Branch”), or to debates over whether statutory grants of jurisdictional permit courts to develop an entire corpus of law, see, e.g., Textile Workers Union v. Lincoln Mills, 353 U.S. 448 (1957).
- 68.
Professor Bradford Clark, for example, has argued that the Supremacy Clause anchors all federal law and limits its sources, embodying an undoubted preference for positive law as part of its role in advancing federalism principles. For a full account, see generally Clark, supra note 7, at 1321–1458; see also Bradford R. Clark (2007), pp. 1289–1313; Bradford R. Clark (2008), pp. 699–731. Professor Henry Monaghan, although not necessarily disputing that Professor Clark’s account of the Supremacy Clause makes sense as a textual matter, argues that historical practice undermines Professor Clark’s thesis. See generally Henry Paul Monaghan (2010), pp. 731–796.
- 69.
See U.S. Const. am. XVII (“The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote.”).
- 70.
Herbert Wechsler (1954), pp. 543–560. Specifically, through the Senate and both the ratification and amendment processes governing the Constitution, states have a voice in what federal law is adopted.
- 71.
As Professor Henry Monaghan has written:
[W]hen a federal court announces a federal rule of decision in an area of plenary congressional competence, it exercises an initiative normally left to Congress, ousts state law, and yet acts without the political check on national power created by state representation in Congress.
Monaghan, supra note 56, at 11; see also Henry M. Hart, Jr. (1954), pp. 489–542.
- 72.
Friendly, supra note 31, at 393–394.
- 73.
Article III by its own terms does not mandate the creation of inferior courts, see U.S. Const. art. III, § 1; see also Sheldon v. Sill, 49 U.S. (8 How.) 441, 449 (1850) (“Courts created by statute can have no jurisdiction but such as the statute confers.”), and it provides that the Supreme Court’s appellate jurisdiction exists subject to “such Exceptions” and “such Regulations as the Congress shall make,” U.S. Const. art. III, § 2; see also Durousseau v. United States, 10 U.S. (6 Cranch) 307, 314 (1810) (positing where Congress has “described” the appellate jurisdiction, “this affirmative description has been understood to imply a negative on the exercise of such appellate power as is not comprehended within it”).
- 74.
As Professor Henry Hart once wrote, state courts “are the primary guarantors of constitutional rights, and in many cases they may be the ultimate ones.” Henry M. Hart, Jr. (1953), pp. 1362–1402.
- 75.
5 U.S. (1 Cranch) 137, 177 (1803).
- 76.
See Monaghan, supra note 56, at 19 (“The Court’s history and its institutional role in our scheme of government, in which it defines the constitutionally compelled limits of governmental power, make it a singularly appropriate institution to fashion many of the details as well as the framework of the constitutional guarantees.”).
- 77.
See, e.g., United States v. Lee, 106 U.S. 196, 219 (1882) (ordering federal officers ejected from the Lee family property and observing in the case, which involved a claim of deprivation of property in violation of due process, that “there is no safety for the citizen except in the protection of the judicial tribunals for rights which have been invaded by the officers of the government professing to act in its name”); Ex parte Young, 209 U.S. 123, 155–156 (1908) (recognizing a cause of action under the Fourteenth Amendment for injunctive relief against state actors); Ward v. Love County, 253 U.S. 17, 24 (1920) (holding that a county must provide a refund of unlawful taxes); see id. (“To say that the county could collect these unlawful taxes by coercive means and not incur any obligation to pay them back is nothing short of saying that it could take . . . property . . . arbitrarily and without due process of law.”); Mapp v. Ohio, 367 U.S. 643, 655 (1961) (holding that violations of the Fourth Amendment prohibition on unreasonable searches and seizures requires the exclusion of evidence so obtained in a subsequent criminal prosecution).
- 78.
403 U.S. 388 (1971).
- 79.
Id. at 410 (Harlan, J., concurring in the judgment).
- 80.
The Supreme Court earlier held that one whose Fourth Amendment rights are violated in an unlawful search is entitled to suppression of any evidence obtained in that search in subsequent criminal proceedings. See Mapp v. Ohio, 367 U.S. 643, 655 (1961). Later decisions have carved out a host of exceptions to this rule.
- 81.
227 U.S. 278, 283–286 (1913) (holding that what constitutes state action for purposes of the Fourteenth Amendment presents a question of federal, and not state, law).
- 82.
Bivens , 403 U.S. at 394; see also id. at 400 (Harlan, J., concurring in the judgment) (“[T]he interest which Bivens claims—to be free from official conduct in contravention of the Fourth Amendment—is a federally protected interest.”).
- 83.
Id. at 397 (relying on, among other things, Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803), for the proposition that “[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury”); see also id. at 411 (Harlan, J., concurring in the judgment) (“[I]t is important, in a civilized society, that the judicial branch of the Nation’s government stand ready to afford a remedy in these circumstances.”).
- 84.
Specifically, Justice Brennan wrote “we have here no explicit congressional declaration that persons injured by a federal officer’s violation of the Fourth Amendment may not recover money damages from the agents, but must instead be remitted to another remedy, equally effective in the view of Congress.” Id. at 397.
- 85.
See Carlson v. Green, 446 U.S. 14 (1980); see also Davis v. Passman, 442 U.S. 228 (1979) (holding that congressional staffer could bring a Fifth Amendment claim for gender discrimination related to her firing despite evidence that Congress had considered applying a remedial scheme to the situation and declined to do so).
- 86.
See, e.g., Bush v. Lucas, 462 U.S. 367 (1983); Schweiker v. Chilicky, 487 U.S. 412 (1988). In Bivens’ wake, the Court has also deemed certain situations to involve special considerations counseling against recognition of any remedy for alleged constitutional injuries. See, e.g., United States v. Stanley, 483 U.S. 669 (1987) (holding that a former serviceperson could not sue the government for administering LSD on him without his consent as part of an army experiment because courts should abstain with respect to injuries that “arise out of or are in the course of activity incident to [military] service” (internal quotation marks and citation omitted)).
- 87.
534 U.S. 61 (2001).
- 88.
Id. at 74. In Malesko, Justice Scalia would have gone further, arguing in a separate opinion that Bivens , Carlson, and Davis are outdated and should be limited to their specific circumstances, if not overruled. See id. at 75 (Scalia, J., concurring) (“Bivens is a relic of the heady days in which this Court assumed common-law powers to create causes of action—decreeing them to be ‘implied’ by the mere existence of a statutory or constitutional prohibition.”).
- 89.
See Laurence H. Tribe (2007), pp. 23–76 (“[T]he best that can be said of the Bivens doctrine is that it is on life support with little prospect of recovery.”).
- 90.
See generally Home Telephone & Telegraph Co. v. City of Los Angeles, 227 U.S. 278 (1913).
- 91.
384 U.S. 436 (1966) (holding that the Fifth Amendment protection against self-incrimination requires that suspects be given detailed warnings before any custodial interrogation proceeds).
- 92.
367 U.S. 643 (1961).
- 93.
See generally Monaghan, supra note 56; see id. at 24 (“[U]nless the Court views a damage action as an indispensable remedial dimension of the underlying guarantee, it is not constitutional interpretation, but common law.”); id. at 18 n.98 (calling this common law “a subconstitutional penumbral area formed by emanations from [constitutional] guarantees”).
- 94.
530 U.S. 428 (2000).
- 95.
The editors of Hart & Wechsler describe the analysis somewhat differently, steering at least as a general matter clear of the constitutional common law label: “First, was there a constitutional violation: for example, does a challenged government action abridge free speech or deny equal protection? Second, even where there is a constitutional violation, to what remedy, if any, is the litigant constitutionally entitled?” Hart & Wechsler, supra note 1, at 329. Beyond its promise of due process, the Constitution only mentions two remedies in its text: just compensation for property taken for public use see U.S. Const. amend. V, and the privilege of the writ of habeas corpus, see id. art. I, § 9, cl. 2.
- 96.
See Monaghan, supra note 56, at 29–30 (“[I]t is the Court, and not Congress, which in the end decides whether a given rule is common law or something more.”).
- 97.
See Monaghan, supra note 56, at 26. Cf. Hart & Wechsler supra note 1, at 329–335 (surveying sources on and discussing Congress’s authority to control constitutional remedies); see also Hart, supra note 74, at 1366 (representing one speaker in his Dialogue as saying: “It must be plain that Congress necessarily has a wide choice in the selection of remedies. . . .”).
- 98.
See Marbury, 5 U.S. (1 Cranch), at 177 (“It is emphatically the province and duty of the judicial department to say what the law is.”).
- 99.
Perhaps this is part of the explanation for the general reluctance of American courts in the analysis of constitutional law questions to look to the constitutional law and customs of other countries. Indeed, it is only on rare occasions that the Supreme Court of the United States engages in tentative comparative analysis of the constitutional law and judicial decisions of other countries. Some prominent examples may be drawn from decisions interpreting the Eighth Amendment’s prohibition on cruel and unusual punishment. See, e.g., Roper v. Simmons, 543 U.S. 551, 578 (2005) (holding that the execution of juveniles is unconstitutional while reviewing a host of international approaches to the same question); see id. (“The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.”); see also Thompson v. Oklahoma, 487 U.S. 815, 830 n.31 (1988) (plurality opinion) (observing that “[w]e have previously recognized the relevance of the views of the international community in determining whether a punishment is cruel and unusual”).
References
Bellia AJ, Clark BR (2009) The federal common law of nations. Columbia Law Rev 109:1–93
Bellia AJ, Clark BR (2017) The law of nations and the United States Constitution. Oxford University Press, Oxford
Clark BR (1996) Federal common law: a structural reinterpretation. Univ PA Law Rev 144:1245–1376
Clark BR (2001) Separation of powers as a safeguard of federalism. Tex Law Rev 79:1321–1458
Clark BR (2007) Erie’s constitutional source. Calif Law Rev 95:1289–1312
Clark BR (2008) Federal lawmaking and the role of structure in constitutional interpretation. Calif Law Rev 96:699–730
Clark BR (2017) Boyle as constitutional preemption. Notre Dame Law Rev 92:2129–2142
Ely JH (1974) The irrepressible myth of Erie. Harv Law Rev 87:693–740
Fallon RH, Manning JF et al (2015) Hart & Wechsler’s the federal courts and the federal system, 7th edn. Foundation Press
Fletcher WA (1984) The general common law and section 34 of the judiciary act of 1789: the example of Marine Insurance. Harv Law Rev 97:1513–1580
Friendly HJ (1964) In praise of Erie—and of the new federal common law. N Y Univ Law Rev 39:383–422
Goldsmith JL (1997) Federal courts, foreign affairs, and federalism. Va Law Rev 83:1617–1716
Hart HM (1953) The power of congress to limit the jurisdiction of federal courts: an exercise in dialectic. Harv Law Rev 66:1362–1402
Hart HM (1954) The relations between state and federal law. Columbia Law Rev 54:489–542
Manning JF (2006) What divides textualists from purposivists? Columbia Law Rev 106:70–111
Monaghan HP (1975) Foreword: constitutional common law. Harv Law Rev 89:1–45
Monaghan HP (2010) Supremacy clause textualism. Columbia Law Rev 110:731–796
Rakove J (1982) The legacy of the articles of confederation. Publius 12(4):45–66
Rossiter C (ed) (2003) The federalist papers. Signet, New York
Sherry S (2011) Wrong, out of step, and pernicious: Erie as the worst decision of all time. Pepp L Rev 39:129–154
Story WW (ed) (1851) Life and letters of Joseph Story, vol 1. John Chapman, London
Tribe LH (2007) Death by a thousand cuts: constitutional wrongs without remedies after Wilkie v. Robbins. Cato Sup Ct Rev 2007:23–76
Warren C (1923) New light on the history of the federal Judiciary Act of 1789. Harv Law Rev 37:49–132
Wechsler H (1954) The political safeguards of federalism: the role of the states in the composition and selection of the national government. Columbia Law Rev 54:543–560
Young EA (1999) Preemption at sea. George Washington Law Rev 67:273–398
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Tyler, A.L. (2018). Customary Law and the Domain of Federal Common Law Today. In: Mayali, L., Mousseron, P. (eds) Customary Law Today. Springer, Cham. https://doi.org/10.1007/978-3-319-73362-3_12
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